‘I see a human being’

The Mauritian legal system ties itself up in knots over race and religion at each general election. It’s pointless and pernicious, says Lindsey Collen.

Imagine this. You are in Mauritius in 2000, and not, by some space-time warp, in apartheid South Africa. You distinctly hear a lawyer, Yousouf Mohamed QC, in the Supreme Court putting it to a defendant, as lawyers are wont to do: ‘Mr Sardanand Lilldharry, you wrote on your nomination paper that you are a Sino-Mauritian?’

The candidate in the general election replies: ‘Yes, I did, My Lord.’

‘What do you see when you look at yourself in the mirror in the morning, Mr Lilldharry?’

A thoughtful silence. Then to the Judge Dhiraj Seetulsing, the candidate says: ‘I see a human being, My Lord.’

‘You wrote on your Nomination Paper, Mr Radha Kistnasamy, that you are a Muslim. What is your father’s first name?’

‘My father is dead, My Lord. People called him “Tamby”.’ Line of questioning a cul-de-sac.

‘Are you married?’

‘Yes, My Lord.’

‘Who conducted the ceremony?’

‘A civil status officer, My Lord.’ Another dead end.

‘Do you have children?’

‘Yes, My Lord, a boy.’

‘What’s his name?’

‘Ryan.’

Yet another line of questioning to find out Radha Kistnasamy’s ethno-religious ‘belonging’ fails.

Witnesses are called. One is a Muslim religious leader. He testifies to the effect that by someone’s name, he can know whether they are Muslim or not. Under cross-examination by Advocate Rex Stephen for the defendant, he concedes that Ahmadiya people do have Muslim names but they are not, according to him, Muslims. Witness falls.

The Supreme Court, after hearing this kind of evidence, has to decide, according to the Independence Constitution, on the ‘community’ or ethno-religious classification of some 25 candidates of three political parties – Lalit, Nouvo Lizour and Tamil Council – whose nomination papers are being challenged. Lalit and Nouvo Lizour candidates had filled in, as the Constitution requires, their ‘community’. But they selected which of the four communities to inscribe by drawing lots.

Every general election since Independence produces an ever more bizarre court case. Judges have to sweat away to interpret anew a devilish little Schedule to the Constitution that bears the curious appellation of ‘Best Loser System’ – this was one of those divisive ‘concessions’ to ethno-religious lobbies made by the British as they left in 1968. The concessions were ostensibly designed to limit the racism-cum-religious politics we call ‘communalism’, but they end up forever after engendering it. The Schedule poisons the political process by infusing it with racial and religious classification. After voting for candidates as individuals and as party members, electors find their votes later allocated proportionately to candidates of different ‘communities’ so that eight ‘best losers’ can be named to ‘restore’ after the fact any imbalance in communal representation.

Judge Seetulsing in 2000 classified everyone before him as ‘General Population’, a holdall for anyone not in the other three, which are defined by religion and geographical roots of ancestors. In a future election this community could also be challenged by any elector.

In the 1982 elections, the Supreme Court had a different problem to solve. One of the parties won all the seats in Parliament. The best loser system, however, was drafted with the idea that there would always be an Opposition, so that four of the eight best losers can be used to re-establish the balance between parties after four are nominated on purely communal grounds. With no Opposition, this couldn’t be done. The Constitution had to be amended piecemeal to allow for this turn of events.

In the run-up to the 2005 general elections, Judge Balancy held that candidates could stand even if they did not fill in their ‘community’. They would form a kind of fifth community of conscientious objectors. This well-meaning though perhaps misguided judgment has since been overturned by the full bench.

Back to square one. But square one is a dodgy little square. In 1982, there was so much popular opposition to classification that the Government removed the question on community from the Population Census. The statistics on community in use today therefore date from the 1972 census.

In a country where class differences are vast and increased class-consciousness would be salutary, this kind of race-religious classification is pernicious and should be done away with. The overwhelming majority of Mauritians want that. But the powers-that-be seem to have a persistent interest in maintaining it.

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